1.4. A Law of Contract or Law of Contracts?

Do we have a law of contract or a law of contracts? The premise of a contract text of this kind is that there is a sufficient body of general rules and principles which apply to all (or virtually all) contracts to say that there is a “law of contract”. The counter-argument can be based on two grounds, both largely to developments in the area over the past 100 years.

First, it can be pointed out that there are many specific types of contract which are now the subject of quite detailed statutory regulation. Contracts of employment, consumer credit agreements and contracts for the sale of land, for example, all operate within elaborate statutory frameworks. Even the type of agreement which might be regarded as the archetypal contract - the exchange of goods for money - is governed by the Sale of Goods Act 1979, the Unfair Contract Terms Act 1977 and, if the buyer is a consumer, the Unfair Terms in Consumer Contracts Regulations 1999. This dichotomy appears in two volumes, one devoted to General Principles, the other to Special Contracts.

The consequences of this can be seen by looking at its effect on the way in which the novice law student learns about the law of contract. This in turn will affect the practitioner’s understanding, and will eventually be likely to have an impact on the practical development of contractual doctrine as developed by the courts. The reality is that the contracts falling within ‘specialist’ areas are often treated for didactic purposes as being best dealt with separately from the general law. The LLB course, therefore, will typically have a Contract Law course, but also separate courses on Employment Law, Land Law, Consumer Law, Commercial Law, etc. The general Contract Law course will not have the time to deal in detail with the statutory regimes governing all the different types of contract, and will leave these to be dealt with by the specialist courses. Some of these specialist courses will be optional. The student who does not follow all of them will therefore have an incomplete picture of the rules and principles governing ‘contracts’. More importantly, he or she will be likely to retain the mental ‘pigeon-holing’ encouraged by this structure to their studies, and therefore be less likely to draw connections between different areas.

One response to this is to say that it does not matter. There is in reality a range of different types of contract, and there is no reason why the rules operating in one area should have any impact in another. A contrary view is to argue that the diversity should be embraced as adding vibrancy to the development of contractual principles. An attempt to adopt an inclusive approach has been put forward by Collins. Noting that the generality of the traditional approach made it ‘increasingly irrelevant’ to disputes governed by special rules, he puts forward an alternative:

In order to counter this incoherence and redundancy, the conception of contract law employed here focuses on the social context of market transactions, that is where people seek to acquire property or services by dealing with others." Whilst acknowledging that the law regulates these transactions by classifying them into particular types, this conception of contract law seeks to understand the general principles and social policies which inform and guide the legal classifications and regulation.